FRANK M. SMITH v. CITY OF EUCLID
No. 107771
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
August 1, 2019
[Cite as Smith v. Euclid, 2019-Ohio-3099.]
MARY EILEEN KILBANE, A.J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-887357
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 1, 2019
Appearances:
Henderson & Schmidlin & McGarry Co., L.P.A., Timothy L. McGarry, and Brendan Mewhinney, for appellee.
Walter & Haverfield, L.L.P., R. Todd Hunt, Benjamin G. Chojnacki, and Sara J. Fagnilli, for appellant.
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, the city of Euclid (the City), appeals the trial court‘s decision denying its motion for summary judgment. For the reasons set forth below, we affirm.
{¶ 3} In 2012, a sinkhole developed on the property behind the retaining wall. The City‘s investigation of this sinkhole revealed an approximate 2” by 4” opening in the top of the sewer pipe just before it connects with the manhole. The City repaired the opening in the pipe in 2012 by covering the pipe‘s hole with cement and surrounding the outside of the pipe with brick. The City‘s former Service Department Superintendent, Scott Reese (Reese), additionally determined that the wood retaining wall on the property needed to be repaired and the sinkhole should be filled with a cement-based flowable fill material, rather than dirt. Unlike dirt, flowable fill can enter all open cavities of an erosion hole. The flowable fill then hardens, thereby providing stability and preventing soil displacement from behind the retaining wall.
{¶ 4} Then in 2016, a second sinkhole developed on the hillside behind the retaining wall on the property. Smith alleges that the City‘s 2012 repair of the manhole located on his property subsequently caused the second sinkhole, which damaged his property, breakwall, boathouse, landscaping, and steps.
{¶ 6} After the conclusion of discovery, the City moved for summary judgment, contending that its operation and upkeep of the sewer system did not cause damage to the property. The City argued that Smith‘s breach of easement claim is an attempt to repackage his negligence claim as a breach of contract. The City further argued that even if it did damage the property, it is immune from liability under
Th[is] court has reviewed [the City‘s] motion, [Smith‘s] brief in opposition, and [the City‘s] reply brief. In viewing the facts and construing the evidence in the light most favorable to [Smith] as the non-moving party, the court finds that there are genuine issues of material fact concerning whether [the City] was negligent in performing a proprietary function of maintaining and operating its storm sewer system under
R.C. 2744.02(B)(2) and whether such negligence proximately caused damages to plaintiff. Riscatti v. Prime Properties Ltd. Partnership, 2012-Ohio-2921. As such, [the City] is not entitled to judgment as a matter of law and summary judgment is not proper underCiv.R. 56(C) . The court further finds that the discovery rule applies to this claim. Cohen v. City of Bedford Heights, 2015-ohio-1308. Genuine issues of material fact exist as to whether [Smith] knew or by the exercise of reasonable diligence should have known that he was injured by the conduct of [the City].The court further finds that there are genuine issues of material fact concerning whether [the City] had a duty under the easement to maintain the storm sewer and to prevent damage to the servient estate. Market Enterprises v. Summerville, 2002-ohio-3692. See also, 36 Ohio Jurisprudence 3d (1982) 464, Easements and Licenses, Section 60.
{¶ 8} It is from this order that the City appeals, raising the following single assignment of error for review:
The trial court erred by denying summary judgment to the [City] which denied the City‘s defense of statutory immunity pursuant to
R.C. Chapter 2744 .
{¶ 9} The City views Smith‘s breach of easement claim as part of his negligence-nuisance claim and argues its motion for summary judgment conclusively established that the sewer system itself was not the cause of the alleged damage to the property. As a result, it contends that the sole issue this court must examine is whether the City is immune from liability pursuant to
{¶ 10} We review an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the appropriate test as follows:
Pursuant to
Civ.R. 56 , summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.
Breach of Easement
{¶ 12} The City contends that Smith‘s breach of easement-contract claim is really a tort claim for damages. Smith, on the other hand, contends that the easement at issue is a contract and the City has no immunity under
{¶ 13} The breach of an easement claim can be analyzed as a breach of contract claim. Stefanich v. Am. Elec. Power Co., 5th Dist. Licking No. 07 CA 0045, 2007-Ohio-6108, ¶ 27. To establish a claim for breach of contract, the plaintiff must show the existence of a contract, performance by the plaintiff under the terms of that contract, breach by the defendant, and damage or loss to the plaintiff. Carey
{¶ 14} We note, however, that
R.C. Chapter 2744 generally shields political subdivisions from tort liability in order to preserve their fiscal integrity. (Emphasis added.) Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 15.
R.C. 2744.09(A) specifies thatR.C. Chapter 2744 does not apply to, and shall not be construed to apply to * * * [c]ivil actions that seek to recover damages from a political subdivision or any of its employees for contractual liability. (Emphasis added.)R.C. 2744.09(A) has been consistently interpreted to mean that political subdivisions cannot claim governmental immunity for breach of contract claims. See E. Liverpool v. Buckeye Water Dist., 7th Dist. Columbiana App. Nos. 11 CO 41 and 11 CO 42, 2012-Ohio-2821, ¶ 47, 972 N.E.2d 1090, and cases cited there; see also Emergency Med. Transport, Inc. v. Massillon, 5th Dist. Stark No. 2010CA00176, 2011-Ohio-446, ¶ 28, (Ohio Revised Code Chapter 2744 grants immunity to political subdivisions and their employees from tort claims, but has no application to claims for breach of contract); Cobb v. Mantua Twp. Bd. of Trustees, 11th Dist. Portage No. 2003-P-0112, 2004-Ohio-5325, ¶ 33 (R.C. Chapter 2744 grants immunity to political subdivisions and their employees from tort claims. However, R.C. Chapter 2744 does not provide immunity from claims for breach of contract).
Today & Tomorrow Heating & Cooling v. Greenfield, 4th Dist. Highland No. 13CA14, 2014-Ohio-239, ¶ 14.
{¶ 15} Smith raised
{¶ 16} Because the alleged breach of easement claim can be construed as a breach of contract claim,
{¶ 17} As a result, we will address solely the applicability of political subdivision immunity to the negligence-nuisance cause of action because we have jurisdiction to review this claim.
Political Subdivision Immunity
{¶ 18} A determination of whether a political subdivision is immune from tort liability under
The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. [Greene, 89 Ohio St.3d 551, 556-557, 2000-Ohio-486, 733 N.E.2d 1141];
R.C. 2744.02(A)(1) . However, that immunity is not absolute.R.C. 2744.02(B) ; Cater v. Cleveland, 83 Ohio St.3d 24, 28, 1998-Ohio-421, 697 N.E.2d 610.The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
R.C. 2744.02(B) apply to expose the political subdivision to liability. Id. at 28, 697 N.E.2d 610.* * *
If any of the exceptions to immunity in
R.C. 2744.02(B) do apply and no defense to that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses inR.C. 2744.03 apply, thereby providing the political subdivision a defense against liability.
Negligence-Nuisance
{¶ 19} Here, the parties do not dispute that the City is a political subdivision, and thus, qualifies for general immunity under
{¶ 21} Under the three-tiered analysis, the City is subject to liability under
{¶ 22} The City contends that its attempt to fix the outflow sewer pipe in 2012, including its decision to use flowable fill, is protected from liability as a
{¶ 23} Reese testified that he believed that the 2012 sinkhole was caused by a leak in the sewer pipe. He made the decision to repair the first erosion hole with a cement-based flowable fill material, rather than dirt. He made this decision because he believed the flowable fill would replace the soil that eroded away and better plug the open cavities in the hole, helping with future erosion. According to Reese, the flowable fill hardens, provides stability, and prevents soil erosion and slippage from behind the retaining wall. He further concluded that the use of flowable fill would provide additional stability for the retaining wall and assist with preventing additional erosion or slippage. Reese inspected the work after it was completed and determined it was done correctly and in a workmanlike manner.
{¶ 24} Smith maintains that the City should have done more than just fill the sinkhole with flowable fill. His experts opined that before pouring flowable fill into the sinkhole, the City should have prepared a proper base beneath the flowable fill. The experts opined that by failing to properly prepare the base of the sinkhole and pouring flowable fill on top of eroded and unstable soils, the City only masked the problem until the sinkhole became visible again years later.
{¶ 26} Based on the foregoing, when construing this evidence in a light most strongly in favor of Smith, genuine issues of material fact exist as to whether the City exercised ordinary care in maintaining and repairing the sewer and whether the City is entitled to political subdivision immunity.
{¶ 27} Therefore, the sole assignment of error is overruled.
{¶ 28} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent out to said court to carry this judgment into execution.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR